Supreme Court amicus brief in Chiafalo v. Washington

I’ve filed an amicus brief on behalf of myself in support of neither party in Chiafalo v. Washington and Colorado Department of State v. Baca. The PDF is here. (Other documents from the case are here.)

The brief makes four points. The first two are reasons federal courts should not hear the case. First, the Twelfth Amendment commits to Congress, not the federal courts, about when and how to count electoral votes. Congress counted the votes cast by Colorado’s and Washington’s electors, and courts should not second-guess Congress’s judgment. Second, Micheal Baca, Colorado’s elector who was replaced, failed to avail himself of political remedies—he never submitted his vote to Congress to consider or asked Congress to count his vote.

The third and fourth points address the scope of the Court’s decision if it reaches the merits. The Court must identify circumstances in which vacancies may arise in the meeting of electors and in which fines can be imposed, because such statutes have been on the books since the Founding. And the Court should not conclude that electors have a right to cast an anonymous ballot, because early state practices and the internal logic of the Twelfth Amendment do not require anonymous ballots.